Champion of liberty award from the Goldwater Institute among many, many others. . 1986, the wall street journal called him perhaps the most powerful journalist in america and the Chicago Tribune has dubbed him americas leading poet of baseball. For me, three things stand out above and beyond his innumerable intellectual contributions and accolades. First is his television fame. I refer here not to fox news or his incredible run on the abc sunday talk show this week, although i must say i learned a lot about how to think like a lawyer from watching him on that show on sundays in the 1980s and 90s even though he, like Abraham Lincoln, never attended law school. But more important than that. Mr. Will is such a household name that like Mickey Mantle and joe dimaggio he was the subject of a fixation by the crikramer character in an episode of my favorite tv show seinfeld. [ laughter ] second is mr. Wills loyalty and dedication as evidenced by the fact that he is a die hard cubs fan. I have tremendous respect and affection for cups fans and i wish him and the cubbies well but i think it only fair to tell him he will have to wait until 2017 since my beloved San Francisco giants win the world series in Congressional Election years going back to 2010. [ laughter ] finally, moving from diamonds to gridiron, hes reported to have said it speaks badly for a university to have a good football team. On this point i must disagree. But i should add that if mr. Wills observation is true, i very much hope that the converse is also true. For if so, during the past few years, we have been an even Greater University than i ever imagined. [ laughter ] it is my great pleasure to welcome mr. Will to the podium. Before he begins his remarks, let me say that although today is super tuesday, a big day in the president ial election campaign, kindly mr. Will has framed his remarks around president lincoln and the personal meaning president lincoln has for him so hes not going to do a Political Roundup in his remarks but after the formal program there will be a q a and he will take a wideranging broad question at that time so lets welcome him on to the stage. [ applause ] thank you. Thank you very much. Thank you very much, dean, for that generous introduction that proves that not all forms of inflation are painful. [ laughter ] with regard to the cubs, it is the case that i only write about politics to support my baseball hab habit. But you talk about waiting. Ive been waiting 107 years since 1908, the last time the cubs won the world series which was two years before mark twain died. So the 107year rebuilding effort is over. [ laughter ] now, to the 16th rather than the 45th president. Here in Central Illinois where men are men and i am from people develop or at least in the 1940s and 1950s they did develop what i consider an admirable midwestern reticence about themselves. Although i left champagne urban from to go to college in 1958, four months after my 17th birthday, i have never not for a moment ever stopped thinking of myself as a midwesterner. I am with in the words that are the title of hamlin gardlins book published 99 years ago, a so of the middle border. As such, i still adhere to what i consider a midwestern reserve in talking about myself. I retain a midwestern inclination not to share my feelings with others and to thank others for not sharing their feelings with me. [ laughter ] which is why there hangs on any office door in my Washington Office in the georgetown section a framed new yorker cartoon that is my personal proclamation against todays confessional culture. The cartoon depicts a man dressed in a suit and tie and reclining rather stiffly on a psychiatrists couch with the psychiatrist sitting behind him, pen and notebook in hand and the cartoons caption, the man on the couch says, look, call it denial if you like, but i think what goes non in my personal lie is none of my own damn business. [ laughter ] however, the deans agreeable summons to speak at this occasion involved an invitation to be somewhat autobiographical, to lift, as it were, a current and Say Something about my thinking and my lifes work. One influence on my lifes work, i should say, was work. Some of it related to this university. One of my summer jobs was as human scarecrow to chase birds away from an experimental garden plot run here on the campus. Back in the day i was a pin setter this was before automation in a bowling alley. During another summer i worked for local Building Supply company that supplied the concrete for the roof of the assembly hall. However, the largest influence on my lifes work was and still is Abraham Lincoln. So i have come here to explain why one of the most important events in my life, one that continues to shape my thinking about the most fundamental problems of the nations public life is an event that happened 87 years ago. 87 years, actually, before i was born. The event was the work of another man from illinois, senator steven a. Douglas. The event was 1854s enactment of the kansas nebraska act. Its not too much to say that a great question posed by that act continues to reverberate in the nations life and certainly in my professional life. It reverberates in the nations life not just because the civil war is the hinge of american hirstry and the kansas nebraska act which repealed the missouri compromise of 1820 was unquestionably the spark that lit the fuse that led to war. If the civil war was not in William Sewards famous phrase an irrepressible conflict before 1854, it certainly was after that. The missouri compromise had been the work of henry clay. The compromise somewhat diffused the slavery issue and animosities for three decades. It did so by forbidding slavery in the louisiana territory north of a line that included the kansas and nebraska territories. The kansas f nebraska act empowered the residents of those two territories to decide whether or not to have the institution of slavery. The acts premise was that the distilled essence of the american project is democracy and this the distilled essence of democracy is majority rule and that therefore it was right that there should be popular sovereignty in the territories regarding the great matter of slavery. People should have the right to vote it up or vote it down. Lincoln disagreed. Hi responded to the act with a controlled, canny, patient but implacable vehemence. So the most morally luminous career in the history of american democracy took its bearings from the principle that there is more to americas purpose, more to justice than majorities having their way. Considering my or gins sorigin land of lincoln, theres a personally satisfying symmetry, which i do not recognize at the time, in the fact 50 years ago i submitted to the Politics Department of Princeton University a doctoral dissertation titled beyond the reach of majorities, closed questions in the open society. The title came from the Supreme Courts 1943 opinion in West Virginia v. Barnett, the seconds of the flag salute cases involving Public School children who were jehovahs witnesses. As told by professor noah feldeman of New York University law school in his splendid history scorpions, the battles and triumphs of fdrs Great Supreme Court justices the two case which is culminated in one of the most striking reversals by the court in its history began on an october morning in 1935 in minersville, pennsylvania, when william dobidus a10yearold fifth grader, refused to salute the flag during the pledge of allegiance. The teacher, feldman writes, tried to force his arm up but william held on to his pocket and successfully resisted. The next day his sister lillian, 11, a fifth grader, also refused to salute the flag, explaining to her teacher the bible says in exodus chapter 20 that we cant have any gods other than jehovah god. At that time, feldman explains, the federal salute closely have semiabled the straight arm nazi salute except that the palm was to be turned upward not down. A National Leader of the jehovahs witnesses had recently given a speech denouncing the nazi salute and several witnesses children around the country had come to the conclusion that lillian explained to her teacher saluting the flag was idolatry. Lillian and william were shunned at school, the Family Grocery store was threatened with violence and boycotted, the School District changed saluting the flag from a custom to a legal duty and the children were exspe expelled from school. Well, their case wednesdayed its way to the Supreme Court as war clouds lowered over the world, a context, feldman notes, that was not favorable to the witnesses. They were pacifists. They had opposed u. S. Participation in the First World War and were opposing any u. S. Involvement in any war in europe. In june, 1940, just days after nazi troops marched into paris, the court ruled 81 that the School District had the power to make saluting the flag mandatory. The opinion for the court was written by Justice Felix frankfurter, a former member of the National Committee of the American Civil Liberties union. He was jewish and had been born in austria which the nazis had occupied in 1938. As a jew he was anxious to avoid practices that allowed School Children to be treated differently because of their religion. The case, millersville v. Gobidus dealt, he said, with an interest inferior to none in the hierarchy of legal values. National unity is the basis of national security. Frankfurter said his personal opinion was that the school board should allow the witnesses children their dissent. He was, however, as most political progressives had been for many decades, an advocate of judicial restraint regarding the actions of democratically elected bodies. And he thought the court should acknowledge that the elected school board had made a defensible meaning reasonable choice expressing the will of a majority of its constituents. The eight members of the majority had all been appointed to the court by president Franklin Roosevelt whose anger with the courts refusal to be deferential toward congresss enactment of the new deal legislation led to his illfated attempt to pack, by and large, in the Supreme Court. The one dissenter in the case was harlan stone who had been appointed by president Calvin Coolidge who i shall say pa parenthetically was the last president with whom i fully agreed. [ laughter ] minersvilles flag salute law, wrote stone, was unique in the history of Anglo American legislation because it forced the children to express a sentiment which, as they interpret it, they do not entertain and which violates their deepest religious convictions. So deference to the School Boards legislative judgment amounted to, said stone, the surrender of the constitutional protection of the liberty of small minorities to the popular will. As feldman says, in 1940 the idea that the court should protect minorities from the majority was not the commonplace that it would later become. Stone had first introduced in the 1937, burying in the a footnote. Indeed, this became one of the most famous and consequential footnotes in the courts history. Taking their cue from the court, many communities across america made flag saluting mandatory. There was an upsurge of violence against witnesses, including that by a mob of 2500 people who burned down the witnesses kingdom hall in kennebunkport, maine. 1943, with the world war raging, the court agreed to hear another flag salute case concerning jehovahs witnesses for the purpose of overturning the decision it had reached just 36 months earlier with gobidus. Writing for a majority in a 63 decision, Justice Robert jackson, who had not been on the court when gobidus was decided said the following. Very purpose of a bill of rights was to withdraw certain subjects from the vicissitudes of political controversy, the place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. Fundamental rights may not be submitted to a vote, they depend on the outcome of no elections. First as a graduate student then briefly as a professor of political philosophy and now for more than four decades as a washington observer of american politics and governance i have been thinking about the many vexing issues implicated in these two flag salute cases. The issues include the source of american rights, the nature of the constitution and the role of the court in construing it and what fidelity to democracy requires regarding the rights of majorities. This is why i say that the kansas nebraska act reverberates in my professional life. It forced the nation and decades later me to confront a question that constantly takes new form but never goes away. It is the question of the limits of our commitment to majority rule. It is the question of how majoritarian we should be in our public life. This is a question of particular moment here at this distinguished law school because it concerns two questions that are, i hope and assume, at the center of Legal Education and scholarship here. The first is the nature and purpose of a written constitution. The second is the legitimacy of judicial review and particularly whether judicial review really does involve what has been called a countermajoritarian dilemma. There are those and they might be an american majority who believe that majority rule is the sovereign American Value that trumps if youll pardon the expression [ laughter ] all others. They believe that the degree of americas goodness is defined by the extent to which majorities are able to have their way. Such people are bound to believe that it is the job of the Judicial Branch of government to facilitate this by adopting a modest deferential stance regarding what legislatures do and regarding what executive Branch Officials and agencies do here judicial deference is said to be dictated by the plebacitory with the modern presidency. This began with the presidency of Andrew Jackson but did not fully flower until modern communications technologies, especially radio and then Television Changed the nature of the american regime by changing the nature of political campaigns and of governance. The current believe is that because president s alone are elected by a National Constituency they are unique embodiments of the national will and hence should enjoy the maximum feasible untrammelled latitude to translate that will into policies. The twofold problem is that majorities can be abusive and some questions are not properly submitted to disposition by majority rule because there are some actually there are many closed questions even in an open society. So we must ask, how aberrant, how frequent are abusive majorities . A related but different question is when legislatures which are majoritarian bodies act, how often are they actually acting on behalf of majorities . My belief based on almost a half century observing washington, the beating heart of american governance, is this. As government becomes bigger and more hyperactive, as the regulatory Administrative State becomes more per miswhite housely sbr promiscuously intrusive in the lives of individuals, only a steadily shrinking portion of what the government does is even remotely responsive to the will of a majority rather, the more government decides that there are no legal or practical limits to its practical scope and actual competence the more time and emergency it devotes to serving the interest of minority, often very small minority factions. So paradoxically, as government becomes bigger its actions become smaller, as it becomes more grandiose in its pretensions, its preoccupations become more minute. Let me offer a few examples from governments below the federal lev level. Ali bocari emigrated from pakistan in 2007, settled in nashville and became a taxi driver. Then got a very american idea, he bought a black Lincoln Town Car and began offering cut rate rides to and from the airport around downtown and in neighborhoods not well served by nashville taxis. After one year, he had 12 cars, soon he had 20 and 15 independent contractors with their own cars. And a web site and lots of customers. Unfortunately, he also had thereby earned some powerful enemies. The cartel of Taxi Companies had not been able to raise their rates since bow carry came to town. Those companies in collaboration with older Limo Companies that resented bocaris competition got the City Governments regulators to require him to raise his prices and impose many crippling regulations is. Another example, sandy meadows was an africanamerican widow in baton rouge. She had little education and no resources other than her talent for making lovely flower arrangements which a local Grocery Store hired her to do. Then louisianas Horticulture Commission yes, there really is one pounced. It threatened to close the store in order to punish it for hiring an unlicensed flower arranger. Mead